I Call Partial Mulligan…

After quite a bit of late-night e-mailing with Jeralyn, and a subsequent good night’s sleep (well, as good as it can get with an early-rising toddler in the house), I’ve decided that my theory on opening the attorney-client privilege to get to factual information may be fatally flawed. Funny how some sleep, and some fresh caffeine, can do that for you.

In the cold light of morning, I’m thinking that simpler just might be better. Evil Parallel Universe made an excellent point to me in e-mail, and I wanted to share it with everyone else:

If I have a point, it is that a corporation’s rights vs. those of an individual are very different, and it is much easier to get to corporate info or AC exceptions than it is for a real live person as a criminal defendant, especially when the corporate interest diverges from the employees interests.

This is absolutely correct, and something that should have occurred to me last night. Work product produced in the course of doing business is far more likely to be disclosed in a criminal investigation than, say, material produced solely for the purpose of criminal defense. So after much thought, I have to say that the attorney-client issue is likely not as plausible as I thought it might be last night.

But where does that leave things — for Fitz and for the rest of us? There are several other options, and I think that all are plausible and deserve some serious discussion.

First, and all credit goes to Jeralyn on this one, it is highly possible that something Luskin said to Viveca Novak (and that was pubished with attribution to Luskin in Time, who gave a lot of on the record interviews) may call into question any perjury defense based on recantation that Rove may be trying to raise.

In order to stop a charge of perjury, a defendant may "recant" (or retract and correct) a statement made to the grand jury which was false. In order for a recantation defense to apply, however, the information (1) cannot have substantially affected the proceeding and (2) it cannot have become clear to the defendant that the lie has been or will soon be exposed. (The DoJ has fantastic information on how USAttys evaluate perjury cases and defenses.)

Which leads me to something that Tom McGuire brought up. What if Fitz is after information that may have been passed from Viveca Novak to Luskin and on to his client? If this information gave Rove a heads up that Cooper might soon spill the beans about their conversation, he might want to get ahead of that and make the offer to Fitz to go before the grand jury again to recant prior testimony.

It sure would explain the rush to testify under oath — again — but if Rove knew that something harmful was going to be said to his position prior to testifying, he no longer has a recantation defense.

And if Fitz can prove that, an indictment is more likely to be forthcoming as well. This is why defense attorneys generally keep their mouths shut about substantial factual details. We discussed this in comments yesterday, but I wanted to be sure it wasn’t missed: criminal clients can be…erm…less than forthcoming with their attorneys, so criminal counsel normally play close to the vest on facts unless and until they have verified them.

Luskin has talked — a LOT — sometimes on the record, sometimes on background, all of which likely has a lot to do with Rove as a political figure. Most of which was probably directed by Rove to save his political skin, but this may have been the very thing that gets him into hot water in a criminal defense context. We’ll see.

Second, there is the issue of the timing of all of this. As Emptywheel pointed out, there may have been an issue of Rove and Luskin trying to have their cake and eat it too in terms of using a scattershot approach to keeping Rove out of hot water: a reporter told me or, in the alternative, maybe Libby did. Yeah, that’s the ticket. (Where is John Lovitz when you need him?)

This also raises a question about any attempt to use recantation for a perjury defense, if Rove was deliberately using Luskin to plant seeds of doubt on issues he knew would be raised — by Cooper and others. And if it was meant to influence the testimony of a witness (say, Cooper via his Time colleague, Viveca Novak), then you have to start asking questions about possible witness tampering and obstruction. (Of course, this is complete speculation on my part, because we have no idea if that occurred. But it certainly is a possibility, since back in May of 2004 up until this summer, Cooper and Time were still fighting their subpoenas.)

FITZGERALD: I don’t buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.

That actually feeds into the other question. When you decide whether or not to charge someone with a crime, you want to know as many facts as possible. You want to know what their motive is, you want to know their state of knowledge, you want to know their intent, you want to know the facts.

It is entirely possible that something Luskin said goes to the heart of what Fitz and his team have been trying to puzzle out — what was the intent of Rove and Libby (and perhaps a number of other actors who haven’t been publicly implicated) in outing Valerie Wilson.

And wouldn’t it be some form of poetic justice if it was Rove’s own attorney, providing Rove-directed spin to the press to save Rover’s political job, who provided the key to unlocking an entire criminal conspiracy puzzle? As an attorney, it is very difficult to wear more than one hat — trying to act as a political spokesperson as well as a criminal defense attorney can be a tough balancing act. Here’s hoping we find out soon if Luskin fell off the beam — and why.

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.